EU: Final decision on surveillance of communications
01 January 2002
The Council of the European Union (the 15 EU governments) and the European Parliament are on a potential collision course over data retention. The issue is whether details of all telecommunications (phone-calls, e-mails, faxes and web usage) should be retained so that the EU's law enforcement agencies (LEAs, police, customs, immigration, security and intelligence agencies) can get access (see Statewatch vol 11 no 3/4).
At the end of January the European Commission caved in and lent its support to the Council's Common Position on the issue - thus abandoning its long-standing support for the EU's Data Protection Commissioners and the Article 29 Data Protection Working Party who oppose data retention.
The European Parliament is due to adopt its 2nd reading report in Committee on 18 April and to vote on this report in the second half of May. The European Parliament will be under great pressure to abandon its opposition to the general surveillance of telecommunications now that the Council and the Commission are in agreement.
The final measure has to be agreed by the three institutions under the co-decision procedure. The history of the procedure so far is that the Commission put forward a proposal to update the 1997 Directive in 2000 (this contains few major changes), the European Parliament adopted its 1st reading position on 13.11.01, the Council adopted its "Common Position" on 28.1.01 and just two days later the Commission produced its assessment of the Council's view. The parliament now has to adopt its 2nd reading position after which (unless it accepts the Council's position), the Council will in turn reject, then the issue will go to a Conciliation Committee.
The battle lines
The division of opinion between the Council and the European Parliament (and the European Commission until December 2001) concern: i) the current requirement for service providers to delete call and traffic data when no longer needed for billing purposes; ii) replacing a current provision under the 1997 Directive allowing for the retention of data in specific cases (ie: when authorised to do so by a warrant or judicial order) by a power authorising the retention of all data - which can be accessed by the law enforcement agencies.
The pressure for the Commission to cave in built up after 11 September. On 20 September the specially called meeting of the Justice and Home Affairs Council called for the LEAs to have access to data "for the purposes of criminal investigation" (emphasis added).
On 16 October the pressure mounted with the US/Bush letter to Romano Prodi, President of the Commission, which called for reconsidering "data protection issues in the context of law enforcement and counter-terrorism imperatives" and for the revision of "draft privacy directives that call for mandatory destruction to permit the retention of critical data for a reasonable period" - the powers being demanded by the US in the EU do not exist there even after the far-reaching PATRIOT Act was passed.
At its meeting on 16 November the Council's Working Party on Telecommunications was close to finalising its draft "common position" which was adopted by the Telecommunications Council on 6-7 December. This proposed that Article 15.1 of the revised 1997 Directive should include:
Member States may inter alia provide for the retention of data for a limited period justified on the grounds laid down in this paragraph, in accordance with the general principles of Community law
When combined with the deletion of the obligation to erase data from Article 6 this proposal renders privacy in communications worthless.
The European Parliament's 1st reading position says:
These measures [to retain data] shall be entirely exceptional, based on a specific law which is comprehensible to the general public and be authorised by the judicial or other competent authority on a case-by-case basis. Under the European Convention on Human Rights and pursuant to ruling issued